IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-56 of 2017

Appellant/Complainant :      Abdul Hameed s/o Abdul Majeed Sheeno

Through Mr.Muhammad Ashiq Dhamraho, Advocate

State                                :       Through Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing               :       14.09.2018          

Date of decision              :       14.09.2018                   

JUDGMENT

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of the instant criminal acquittal appeal are that the private respondents on trial were convicted and sentenced to various terms, by learned 2^nd Civil Judge and Judicial Magistrate, Warrah, for an offence punishable u/s.506/2, 504, 452, 337-F(iv), 148, 149 PPC, outcome of FIR/Crime No.31/2016 of P.S Gaji Khuhawar, by way of judgment dated 11.05.2017, which the private respondents impugned by way of filing an appeal. It was accepted by learned Sessions Judge, Shahdadkot @ Qamber, vide judgment 20.09.2017, consequently the conviction and sentence recorded against the private respondents by learned trial Magistrate were set-aside and they were acquitted of the offence.  

2.                In order to complete narration, it would be appropriate to state that the private respondents allegedly with rest of the culprit, after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons, by committing trespass into house of appellant/complainant Abdul Hameed, by using criminal force attempted to cause him butt blow, which he managed to save, the same eventually hit to his son Sameer on his left foot and then the private respondents by pointing their weapons at appellant/complainant went away by threatening him to be murdered in case he will not have matrimonial relation with them, for that the present case was registered.

3.                At trial, the private respondents did not plead guilty and prosecution to prove the charge, examined PW-01 appellant/ complainant, produced through him FIR of the present case, PW-02 Yaseen, PW-03 Medical Officer Dr.Imam Ali, PW-04 SIO/ASI Ahmed Khan, produced through him memo of injuries and place of incident, PW-05 Mashir Rab Nawaz and then closed the side.

4.                The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that they have been involved in this case falsely by the appellant/complainant. They produced certain documents to show that there is matrimonial dispute between them and the appellant/complainant. They did not examine themselves on oath or any one in their defense.

5.                On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

6.                It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge without proper appreciation of the evidence and without lawful justification. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing for further action against the private respondents.

7.                Learned A.P.G supported the impugned judgment.

8.                I have considered the above arguments and perused the record.

9.                The FIR of the incident has been lodged by the appellant/complainant with un-plausible delay of about thirteen days, which suggests that the incident has taken place in a manner other than one as is projected by the appellant/complainant. The butt blows was aimed at the appellant/ complainant, which he managed to save under mysterious circumstances, same then hit to his son Sameer under mysterious circumstances, which appears to be significant. The private respondents were having no intention to cause butt blow to PW Sameer a minor boy of seven years age. The parties admittedly are already disputed over matrimonial affairs. As per SIO/ASI Ahmed Khan, the FIR of the incident was and memo of injuries were written by WPC. If it was so, then he could hardly be said to have invested the case himself. It was indeed a table investigation of the case. In these circumstances, the learned Appellate Court was right to order for acquittal of the private respondents of the offence by setting aside judgment of learned trial Magistrate by extending them benefit of doubt by way of impugned judgment.

10.              In case of Faheem Ahmed Farooq vs.The State (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

11.              It is settled by now that the acquittal carries with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with until and unless it is found to have been passed in arbitrary or cursory manner.

12.              In case of State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is held by the Hon’ble Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption  of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

13.              Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference.  

14.              Above are the reasons of short order dated 14.09.2018, whereby the instant criminal acquittal appeal was dismissed.

                                                                                                      JUDGE